May/June 2019

ABLE Advocacy Ratchets Up on the Hill and Beyond

National Disability Institute’s Washington Insider readers will recall that bills in both the U.S. Senate and House to expand the reach and impact of ABLE accounts are now in play, and support for their enactment is growing. The ABLE Age Adjustment Act (S. 651/H.R. 1814) would amend Section 529A(e) of the Internal Revenue Code to increase the eligibility threshold for ABLE accounts for onset of disability from prior to age 26 to prior to age 46. ABLE (Achieving a Better Life Experience) accounts are tax-favored accounts that are designed to enable individuals with disabilities to save for and pay for qualified disability expenses without jeopardizing public benefits.

As currently written, the existing ABLE Act prevents otherwise-eligible individuals with disabilities from realizing the benefits of ABLE accounts. By passing the ABLE Age Adjustment Act, more than 14 million people with disabilities would be allowed to open ABLE accounts, nearly doubling the current eligible population. Moreover, the long-term sustainability, availability and affordability of these programs may be at risk without an expansion of age of onset eligibility and other enhancements.

What’s Needed Beyond Age Adjustment

Regarding additional enhancements, the disability community is broadly committed to advocating for enactment of age adjustment first prior to any concerted efforts to promote additional policy objectives. Indeed, both the House and Senate age adjustment bills currently winding their way through the legislative process deal exclusively with increasing the age of onset eligibility to before age 46 and no other objectives. Nevertheless, it is critical for the disability community to continue to formulate and prepare to advocate for other federal and state improvements to the ABLE Act. In addition to exploring the establishment of a tax-advantage benefit to employers who contribute or match ABLE contributions of their employees, NDI, in partnership with our disability policy colleagues and key congressional policymakers, is developing possible strategies for seeding ABLE accounts, along with expanded education and outreach approaches, utilizing a variety of disability program channels including Medicaid, vocational rehabilitation (VR) and special education.

Two specific policy objectives under consideration are getting some contentious attention recently. While the ABLE Act currently allows states to lay claim to ABLE account funds remaining after the death of an ABLE account beneficiary who received Medicaid services, a growing number of states have enacted legislation prohibiting what many advocates refer to as the Medicaid “clawback.” Yet, the National Association of State Treasurers (NAST) and others are proposing that the Medicaid payback be eliminated at the federal level. Some disability community Medicaid champions, however, are strongly cautioning that such a federal push to prohibit recoupment of Medicaid dollars could backfire politically. Similarly, the role of individual and/or organizational Social Security representative payees to open or even assist in management of beneficiaries’ ABLE accounts is being floated, a strategy which its proponents argue has the potential to vastly increase ABLE account enrollment given the millions of Social Security recipients with representative payees. However, this policy objective is also generating some angst among disability advocates who have long been concerned about widely reported misfeasance in the representative payee program.

IRS ABLE Advocacy

Meanwhile, as the campaign for the ABLE Age Adjustment Act presses on, disability advocates in Washington are also turning their attention to the Internal Revenue Service (IRS) which has yet to publish final rules implementing the ABLE Act. With such final regulations being four years overdue, ABLE Act congressional champion, Rep. Cathy McMorris Rodgers (R-WA-5) is assisting advocates in urging the IRS to either proceed with issuance of final rules or, at a minimum, to provide supplemental sub-regulatory guidance in discrete areas needing the most clarification. The final IRS rules had been rumored to be coming out this summer, but now the latest published agenda of federal regulatory activity would place IRS publication of ABLE Act rules no earlier than Spring 2020. While it is critical that we ultimately have final authoritative rules, the IRS has indicated that the approach the agency took in its 2015 Notice of Proposed Rulemaking (NPRM) and subsequent policy guidance, while not yet officially codified in regulations, is nevertheless a reliable guide for account owners to follow.

What Happens Next?

Co-sponsorship of both the House and Senate versions of the ABLE Age Adjustment Act is growing and on a strong bipartisan basis. As support continues to increase in the Senate, our champions have been engaged in fruitful negotiation with key staff of the Senate Committee on Finance, the body with jurisdiction over the age adjustment legislation. Advocates are encouraged to reach out to their two U.S. Senators and to ask them to co-sponsor S. 651. This is particularly critical to do if your Senator is a member of the Finance Committee; you can find the list of Senate Finance Committee members at https://www.finance.senate.gov/.

Disability advocates in Washington are shifting their attention a bit to the U.S. House where we need to recruit members of the powerful House Ways and Means Committee to help us move H.R. 1814 through the process. Advocates are encouraged to ask your member of the U.S. House to co-sponsor H.R. 1814, and especially if your House member serves on the Ways and Means Committee – https://waysandmeans.house.gov/.

Federal Reserve Acknowledges NDI’s Call for Disability-Inclusive Community Development

In Fall 2018, NDI submitted formal written comments on an Advance Notice of Proposed Rulemaking (ANPRM) issued by the U.S. Treasury Department’s Office of the Controller of the Currency (OCC) seeking input from the public about potential new approaches in implementing the 1977 Community Reinvestment Act (CRA). A law that was originally intended to thwart the practice of so-called redlining and to ensure that banks and other financial institutions are addressing the needs of their local low- and moderate-income (LMI) communities, the CRA and the regulatory framework that has been built up over decades to support it is considered in need of substantial modernization by significant players in the financial services industry. The comments offered by NDI indicated that, as any efforts move forward to make changes to the CRA regulatory framework, the needs of people with disabilities must be specifically named and incorporated.

As one of the three regulatory bodies with CRA responsibilities in addition to the OCC and FDIC, the Federal Reserve Board conducted some 29 in-person CRA modernization-related listening sessions across the country inviting comment from more than 400 individuals representing financial services, consumer, community development and related stakeholders. NDI’s Executive Director, Michael Morris, was invited to be a participant.

On June 13, The Federal Reserve published a report of the feedback gathered: Perspectives from Main Street: Stakeholder Feedback on Modernizing the Community Reinvestment Act. Stakeholders both on the banking and community group sides mentioned a need for greater clarity in the CRA examination process. Many agreed that the process should be more transparent and that the rules for CRA-eligible activities should be more obvious and applied more consistently.

Given that one of the themes expressed among proponents of CRA modernization is to move away from a strict local community construct and to have the CRA framework better accommodate 21^st century banking, many listening session participants pointed out that new technology and a rise in online banking means that banks often do business well beyond their physical footprint, meaning that limiting CRA assessment areas to these surroundings seems a bit antiquated.

However, stakeholders split on whether assessment areas should be changed to reflect more than strict geography. Some argued that the changing geography and increasing online presence of banks could adversely affect the underserved communities that the CRA intends to protect and the individuals who often lack the resources and technology to take advantage of these changes. Others “urged the regulators to think more broadly about underserved populations and focus more on people than geography,” reasoning that “the elderly, racial minorities, immigrants, students, veterans and the physically and mentally disabled are also populations that are underserved by the banking system” and should be more thoughtfully and intentionally included in the CRA framework.

Disability Community Rallies Around Wage Fairness and Integrated Jobs Bill

In late May, the House Committee on Education and Labor held a compelling hearing on the Transformation to Competitive Employment Act (S. 260 in the Senate and H.R. 873 in the House), legislation that would end, over a six-year transition period, the practice of paying subminimum wages to people with disabilities and incentivize the elimination of so-called segregated employment settings through $300 million in technical assistance and state and other grants. Committee members heard both moving and substantive real world testimony about the meaning of work that is truly valued and integrated. Advocates are encouraged to build support for H.R. 873 by asking your Representative to co-sponsor the bill. As of this writing, the Senate version of the Transformation bill, S. 260, is still in need of a Republican co-sponsor, so advocates are encouraged to urge the support of your two U.S. Senators.

While it is true that some national and community-based disability service provider holdouts remain unwilling to support the Transformation bill’s objectives, the chorus of consensus in favor is growing ever louder. For instance, the Consortium for Citizens with Disabilities (CCD) Employment and Training Task Force, the nation’s largest cross-disability policy coalition’s forum for discussion and debate of such matters, had been unable for years, after much contention, to achieve consensus about policy or strategy on subminimum wage or competitive integrated employment. However, the Task Force voted overwhelmingly in late May to endorse the Transformation bill and to communicate that decision in writing to the Hill, and the CCD Civil Rights Task Force similarly weighed in with its support. These significant expressions of commitment to fair wages and integrated career opportunities are clearly signaling a fundamental national shift away from outdated public policy.

Finally, advocates have been awaiting what had been believed to be the imminent publication of a formal proposed regulation realizing the U.S. Education Department’s intent to reopen its vocational rehabilitation regulations implementing the Workforce Innovation and Opportunity Act (WIOA) to, in some fashion, recalibrate the Department’s competitive integrated employment (CIE) mandate. While the possibility of such proposed rules is certainly still on the table, the federal government’s most recently published agenda outlining the expected timeline for federal agency action places any proposed regulations in this area much farther out. Whether this delay is the result of disability community advocacy against such new rules or some other bureaucratic cause, advocates are temporarily relieved, but remain vigilant and now have additional time to further press our case with Education Department leadership. The majority view in the disability community would simply have the Education Department slightly revise its sub-regulatory guidance materials to, among other things, emphasize that AbilityOne-related jobs must be assessed on a case-by-case basis to ensure that such jobs meet the definition of competitive integrated employment.

New Bill Celebrating the CAPABILITY of Transition-Age Youth with Disabilities Introduced

The Customized Approaches to Providing and Building Independent Lives of Inclusion for Transition-aged Youth (CAPABILITY) Act of 2019, H.R.3070, was introduced by Rep. Seth Moulton (D-MA-6) with co-sponsor Rep. Cathy McMorris Rodgers (R-WA-5) on June 3 in response to the disproportionately low number of adults with disabilities, especially individuals with intellectual and developmental disabilities, who are working. Only 24 percent of transition-aged youth with disabilities and 35 percent of adults with disabilities are currently participating in the labor force, despite federal law mandating that schools and state disability systems collaborate to help students with disabilities successfully transition from school to work.

The CAPABILITY Act aims to help states better address these inequities by creating six grants to be used by states to enact transition services and support programs, including peer mentoring, career plans, benefit counseling and asset development, and technical assistance, for students with disabilities. The bill also ensures that these programs inform future policymaking by requiring states that receive funding to evaluate their effects and success. NDI will be working with the champions of this innovative legislation to promote the use of ABLE accounts as part of the asset development and financial literacy critical to success.

Labor Department’s 14(c) Listening Sessions Leave Many Questions Unanswered

Earlier this spring, the U.S. Department of Labor (DOL) indicated that it would be conducting an invitation-only in-person listening session to hear directly from stakeholder groups about their perspectives on the payment of subminimum wages to people with disabilities under section 14(c) of the Fair Labor Standards Act (FLSA). However, as news of the invitation-only event spread among groups, not only in Washington, D.C., but around the country, the in-person event was called off and DOL opted for an online public comment collection process open to any interested individuals and organizations. This online listening session came under significant criticism from many in the disability community who pointed out that the online method for submitting comments was far from user-friendly and not accommodating to most consumers. Consequently, in addition to extending the deadline to receive public comments by a week, DOL also offered a telephone option during the time extension to accept input orally rather than via the Internet.

As of this writing, analysis of the comments received by DOL indicates that comments favoring the continuance of 14(c) outnumber those opposed. However, a closer look at comments submitted shows that many of the favorable comments offered were canned responses, meaning that in several instances the remarks were clearly modeled from a single source if not verbatim reproductions. While these and many other criticisms of DOL’s listening session are being leveled, what is both unclear and unsettling to disability advocates committed to elimination of 14(c) is what DOL precisely intends to do with the results of the extensive and deeply divided feedback received. For many disability advocates, reading through the many endorsements of the payment of subminimum wages is a heartbreaking exercise when remembering the appalling poverty rate among working-age people with disabilities which is two and a half times that of working-age people who do not live with disability.

Trump Administration Proposes Risky Poverty Level Recalculation

On May 6, the Office of Management and Budget (OMB) requested comments on a proposed change to the federal poverty line calculation; it proposed changing the inflation rate used in the calculation to one that increases more slowly which, over time, would lower the federal poverty line, causing more and more people to lose access to countless critical programs that determine eligibility based on this figure, including SNAP, TANF, housing subsidies, SSI, Medicaid, Medicare, free and reduced price school meals, LIHEAP, Head Start, WIC and numerous other federal, state and local services. The proposed OMB change overlooks crucial research indicating that inflation rises faster for lower income households than for the population as a whole. Moreover, that regardless of inflation rate, the poverty line calculation has inherent accuracy problems that lead to its failure to capture the complete cost of healthcare, housing and raising a family.

To respond to the proposed poverty level recalculations, NDI joined with our partners in the Consortium for Citizens with Disabilities (CCD) to both object to the process that OMB is using to skirt the formal rulemaking proceeding that should be undertaken to affect a change of this significance and to address the real-world impact on people with disabilities should the proposed recalculation move forward. The alternative inflation rates that OMB proposed are “chained,” meaning they take into account the substitutions that consumers make in response to changes in price. Yet, people with disabilities often cannot make substitutions. In its response, CCD explains, “If insulin becomes more expensive, people with diabetes cannot substitute a different medication to sustain life. If bus fare increases, people with severe visual impairments or epilepsy cannot switch to driving a car. If the price of deli meat increases, people with peanut allergies cannot swap their turkey sandwiches for PB&Js. People with disabilities often require specially tailored clothing, assistive devices and technologies, specific diets and other expenditures that cannot easily be changed because of changes in relative prices.”

With the OMB comment period now closed, many questions remain as to what the Trump administration’s next move to redefine poverty may be. Administrative law experts point out that the process by which OMB has proposed this profoundly impactful change is quite vulnerable to challenge in court because of the lack of formal notice and comment required for regulations and particularly actions like these with such potential seismic impact.

Disability and Emergency Preparedness/Disaster Relief Finding Congressional Champions

The Real Emergency Access for Aging and Disability Inclusion for Disasters Act, S.1755/H.R.3208, was introduced by Senator Bob Casey (D-PA) on June 10 with Senators Susan Collins (R-ME), Doug Jones (D-AL), Richard Blumenthal (D-CT), Tammy Duckworth (D-IL), Kamala Harris (D-CA), Maggie Hassan (D-NH), Kirsten Gillibrand (D-NY) and Chris Van Hollen (D-MD) as co-sponsors. It was introduced in the House on June 11 by Rep. James Langevin (D-RI-2) with Reps. Christopher Smith (R-NJ-4) and Donna Shalala (D-FL-27) as co-sponsors. The bill aims to ensure that older adults and people with disabilities are protected during natural disasters by giving this population, which tends to be disproportionately affected by these disasters, a stronger voice in the preparation process. To this end, it creates the National Commission on Disability Rights and Disasters to conduct research and make recommendations to ensure that people with access and functional needs are fully included in disaster preparations. It also requires the Government Accountability Office (GAO) to evaluate the spending of emergency funds to ensure ADA compliance and the Department of Justice to examine whether the civil rights of older adults and people with disabilities are upheld through responses to these disasters. Finally, it provides training and assistance to states to help them better address the needs of this population and creates a grant program to encourage the development of innovative methods to foster greater inclusion in preparing for and addressing disasters.

In addition, the Disaster Relief Medicaid Act, S.1754/H.R.3215, was also introduced by Senator Bob Casey (D-PA) on June 10 with co-sponsors Senators Sherrod Brown (D-OH), Richard Blumenthal (D-CT), Kamala Harris (D-CA) and Kirsten Gillibrand (D-NY). In the House, it was introduced on June 11 by Rep. Donna Shalala (D-FL-27) with co-sponsors Reps. James Langevin (D-RI-2), Eleanor Holmes Norton (D-DC) and Jenniffer Gonzalez-Colon (R-PR). This bill defines Relief-Eligible Survivors as people who live in areas covered under presidential disaster declarations and protects these people from losing their Medicaid services if forced by disasters to relocate to another state. It ensures that states have the resources to cover relocated non-residents by guaranteeing a 100 percent federal matching payment for medical assistance to displaced individuals. Additionally, it establishes a grant to allow states to create emergency response corps to provide community-based services and offers technical assistance to states addressing surges of people fleeing disaster.

In supporting these important legislative initiatives, NDI will be working with the bills’ champions to promote the utility of ABLE accounts as excellent emergency preparedness vehicles for people with disabilities.